How did the Act 2019 outrage the vary community it promised to Protect ?
Updated: Jan 11
By – Poorvika Khatwani
With the end of Pride Month 2020 , it is only fair that we become aware of the Trans community and their struggles, keeping aside our privileges. It is not unknown to us that transgender people in India have been a subject to discrimination and have been denied their dignity for years. Their entire existence is often confined to the usage of derogatory slurs by Cisgender people. Transgender people were not even recognized as a separate gender neutral identity until 2014, when the Supreme Court’s landmark judgement in the case of National Legal Services Authority v. Union of India (also referred as NALSA) recognized the community as a ‘ Separate Gender’ and provided a progressive stance on self-determination of gender. Taking into consideration the plight of transgender people, atleast it was said so while the implementation, the parliament came up with The Transgender Persons (Protection of Rights) Act in 2019, but the act was outrageously rejected by the vary people that it seeks to protect. This article sheds light on the provisions of The Trans Act 2019, and its severe discrepancies that caused nationwide protests.
WHAT DOES THE TERM “ TRANSGENDER” MEAN?
“Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS ) ACT 2019
“The Transgender Persons (Protection of Rights) act prohibits discrimination against transgender persons with regard to things like education, employment and the ability to rent or buy property.
If we go by the name of the act, it is suggested that the act is meant for the betterment of Transgender people, but many claim that the provisions are dehumanizing and regressive and work completely parallel to the interests of the vary community that it represents and wishes to safeguard. Few problematic areas of the act are:
1. LEGAL GENDER DETERMINATION : The act provides transgender persons a “right to self-perceived identity” which means they are free to express and conduct themselves according to whatever gender they like, but on the other hand the act requires them to register with the government if they want to be officially be recognized as “transgender.” i.e If a transgender person identifies as a trans man or trans woman and wants to be legally recognized, they are required to submit a proof of gender confirmation surgery to the government.
The need to provide a proof and obtain a certificate of one’s own identity itself is insulting and heads towards the violation of basic fundamental rights. What makes it worse is that the District Magistrate, Medical officers and other people involved in the process have the power to determine the “authenticity and correctness” on no solid and specific grounds. The already vulnerable trans community feels that the act gives power to everyone but them , to determine their future and their lives. This in direct violation of NALSA, which affirmed the right to self-determination of gender as male, female or transgender without the mandate of any medical certificate or sex-reassignment surgery. The new procedure is also likely to expose transgender persons to intrusive medical scrutiny.
2. LACK OF CONSULTATION : The Act was drafted , debated over and passed without approaching anyone from the trans community itself. Little or no thought was given on consulting the trans people, equipping for their needs and requirements and understanding their struggles to offer real and better solutions for their upliftment. . As a result, most of the assumptions were made based on stereotypes, and thus was not received well by the community. The transgender activist Grace Banu described it as a “murder of gender justice.”
3. NO PROVISION FOR RESERVATION, MARRIAGE, ADOPTION etc : The act fails to mention important civil rights like marriage, adoption, social security benefits and also does not provide quotas for transgender people in public education and jobs This goes against the mandate in NALSA, which had clearly stated that the state must take measures “to treat trans people as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments”. Transgender individuals in India often face stigma and systematic exclusion in education and employment and as a result, many feel that they have no alternative but to turn to sex work. No wonder, the HIV prevalence among India’s transgender community is 26 times higher than the national rate. Reservation is the only solution but the act neglects that and is consequently considered inadequate on the above stated fronts.
4. IGNORANCE AND INJUSTICE : Trans people face disproportionate public violence and police brutalities. The act makes abusing transgender people a punishable offense with a jail term from six months to two years. But under Indian law, when a cisgender woman or child is sexually abused, the punishment can be as severe as a life sentence or, in some cases, even the death penalty. Lesser punishment for crimes against transgender people reiterates and strengthens the idea that trans lives are inessential and of lesser value. It also thrashes and violates Article 15 of India’s Constitution that guarantees that no state can discriminate against citizens on the basis of religion, caste, race or sex.
5. VAGUE LEGAL PROVISIONS : The act further fails to extend protection to transgender persons who might face sexual abuse because the Indian Penal Code generally recognizes rape in strict terms of men being perpetrators and women being victims.
6. OUTRULES THE NALSA JUDGEMENT : The Act is said to be regressive and it is a far cry from the Supreme Court’s landmark 2014 judgement in National Legal Services Authority v. Union of India (or NALSA). Considering that because the transgender population had not been legally recognized, its members have been ostracized and abused, not only did the Supreme Court ruled that transgender people should be recognized as a third gender and enjoy all fundamental rights, but also made it clear that “any insistence for sex reassignment surgery for declaring one’s gender is immoral and illegal. The Act in its present form, disregards the NALSA judgement and sets the whole Trans movement back by a decade, undoing all the progress made by the community over the past few years.
Currently, The TRANS ACT 2019, has failed to secure the constitutional rights for trans people and it continues to push them into obscurity , making a mockery of their struggles. There are 4.9 lakh Trans people in India, presently and the need of the hour is for the legislation to make sincere amendments to ease the plight of the long persecuted community. The act should be further reviewed. Transgender persons’ right to decide their self-identified gender without any certification, whatsoever, should be recognized by state and federal authorities. They should be entitled to reservations in the matter of employment, as envisaged under Article 16(4) of the Constitution.
Trans people have been devoid of dignity and personhood and the state should be bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. The trans community deserves better and India can and should do better.